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Sunday, February 19, 2017

Title IX

Another battle over 9?

The NY Times ran an article yesterday essentially dealing with whether the Trump administration might change Title IX regulation of sexual assault. It is reproduced below. However, keep in mind when reading it that California adopted legislation on this issue:

And UC adopted its own internal standards of adjudication. Unless the Trump administration were to threaten to withhold funding, California and UC would likely be unaffected by any change in federal regulation. Indeed, the issue is now so charged with political symbolism that any changes which in other circumstances might have been considered in California or in UC are now unlikely.--------------Universities Face Pressure to Hold the Line on Title IX

By Anemona Hartocollis, Feb. 18, 2017, NY Times

Advocates are starting a campaign to try to persuade colleges to maintain the Obama administration’s tough policies for protecting women on campuses from sexual assault, even if the Trump administration relaxes enforcement.Many people expect the Trump administration to tilt the balance of federal guidance to make it harder to discipline the thousands of students, almost all of them men, who are accused of sexual violence against women each year.Women’s groups are leading the push, along with an organization that represents the campus administrators responsible for enforcing federal sexual assault policy — a group whose numbers have grown into the thousands in just a few years.The main goal of those involved in the effort is to convince college presidents that the Obama-era policies have positively transformed the lives of women on college campuses.“This is a chance to be doing what we should be doing rather than what we must be doing,” said Brett Sokolow, the executive director of the Association of Title IX Administrators, which takes its name from the federal sex discrimination law.On one side of the issue are those who believe the Trump administration could usher in a new era of stigmatizing young women who speak up when they have been sexually assaulted by fellow students. On the other are critics, including many conservative activists and lawyers, who say that young men are being demonized and having their rights trampled in campus disciplinary proceedings.Mr. Sokolow’s group has drafted a document, “The ATIXA Playbook: Best Practices for the Post-Regulatory Era,” which he said would be distributed to 33,000 people at schools, colleges and universities whose job involves enforcing Title IX.The paper’s introduction notes that many critics have said colleges should not be in the business of policing sexual violence, and that this is a “politically opportune moment to offer a spirited defense” of why they should be.End Rape on Campus, a “survivor advocacy organization,” created the hashtag #DearBetsy, a reference to Betsy DeVos, the new federal education secretary, and has urged the posting of messages on Twitter in support for “sexual assault survivors” and others protected from discrimination by Title IX policies, including lesbian, gay, bisexual and transgender students.“I want us to take a stance proactively,” said Sofie Karasek, the director of education for the advocacy group. “I don’t want us to just react to things that happen. I want to get ahead of whatever is going to come down the pipeline.”On Wednesday, the National Women’s Law Center and other women’s and student groups held a “call-in” to the Education Department, demanding that Ms. DeVos commit to the current federal sexual assault guidance.“That was our first big action collectively,” said Neena Chaudhry, the law center’s senior counsel and education director. “We’re looking at a Twitter storm sometime soon.”Colleges and universities are in a delicate position, reluctant to dismantle the current system for addressing sexual assault, while viewing the new administration as potentially making it less fraught for them.“Schools must and will continue to support survivors and to be fair to both parties, we are required to do that, but federal guidance can be a straitjacket that forces schools to act in a way that may not further those goals,” said Terry Hartle, the senior vice president of the American Council on Education, a higher education trade group.Mr. Hartle acknowledged that colleges and universities chafe at the public scrutiny that comes with being put on a list of institutions under investigation, even before findings have been made. That list now numbers 309 cases at 227 colleges and universities, including Cornell, Harvard, Johns Hopkins, M.I.T., and Stanford.He said the criteria for such federal investigations were “vague” and “ambiguous,” and that colleges would like clarification.“How do we avoid getting sued by the government?” he said.He said that many college presidents believe disciplinary proceedings could sometimes be carried out more equitably through mediation, which could better account for complexities like memories dimmed by alcohol and stories that conflict and lack witnesses, rather than through the current system, in which there are clear winners and losers. But mediation is not now allowed.But Mr. Hartle said that trying to reshape sexual assault policy could be politically risky.“I think the challenge for the new administration will be to ask themselves, can this be changed in a way that does not get us killed?”Ms. DeVos said during her confirmation hearing that it would be premature for her to take a position on Title IX, and a spokesman for her office declined to comment Friday. Sexual assault policy is carried out by the department’s Office for Civil Rights, and whoever takes over that office would have a strong influence on any change in direction.Gail Heriot, a leading critic of Obama-era policies, and a University of San Diego law professor, has been put forward as a candidate by more than 240 largely conservative activists and college faculty members, in a letter sent to the Trump administration and reported by The Chronicle of Higher Education. Among those signing were Harvey Silverglate, a co-founder of the Foundation for Individual Rights in Education, a free-speech group, and Heather Mac Donald, a fellow at the Manhattan Institute.Ms. Heriot said in an email Friday that she had not heard from Ms. DeVos or anyone acting on her behalf. “I have no evidence that I am actually being considered for the job,” she said.Advocates credit the threat of federal investigations with fostering a better understanding of campus rape as a serious problem deserving of clear consequences, up to suspension and expulsion.Critics, including prominent law school professors, say the federal guidance has trampled on the due process rights of the accused — almost always young men — by setting a low standard of evidence and by not requiring the involvement of the police and other law enforcement agencies.“There are poorly trained administrators, faculty and students investigating alleged criminal conduct, sitting in judgment and doling out punishment,” said Charles Wayne, a lawyer in Washington, who has represented more than a dozen men accused in campus proceedings.Mr. Sokolow said his group’s tracking indicated that 10,000 to 12,000 cases reach the disciplinary phase every year — many more when sexual harassment, stalking and relationship violence are counted too. Others said the number was hard to come by, but perhaps in the low thousands.Some of the activists have been buoyed by the success of the Women’s Marches the day after President Trump’s inauguration, which, according to estimates, drew more than one million people in cities across the United States and more around the world.“I have called the Department of Education quite a few times and called my senator quite a few times,” said Jessica Davidson, a 2016 graduate of the University of Denver and an activist with End Rape on Campus who said a fellow student had been found guilty of raping her through the campus disciplinary process.Mr. Sokolow said that Title IX officers are prepared for whatever may come. “I’m playing a long game and looking at this as a cyclical retraction,” he said. “Title IX is 45 years old. It’s waxed and waned. It isn’t going anywhere. We just have to figure out how to navigate it.”